Post by Low Light Mike on Sept 3, 2006 13:10:43 GMT -8
From UBC Maritime Law course materials. This has some interesting technical jargon that might interest some here, as well as some maritime legal stuff, and the makings of a good sea story: all in the style of an official court case record. I believe this story refers to an accident on the "MV Brentwood" (the writeup doesn't give prominance to the ship's name)
(late edit: re the MV Brentwood, this was formerly know as "Cascade", and is discussed here on this forum, as part of this rambling thread: ferriesbc.proboards20.com/index.cgi?board=coasters&action=display&thread=1129503137 )
Here's the link to this legal case, that I've cut/pasted below:
faculty.law.ubc.ca/phideltaphi/links/CANS/Maritime/Maritime_HawkinsMargolis_2003_Can1.doc
==============================
(c) The Inchmaree Clause
Coast Ferries Ltd. v. Century Insurance Co. of Canada (1974), [1975] 2 S.C.R. 477, 48 D.L.R. (3d) 310 (S.C.C.)
A policy of marine insurance invoked by the appellant, the owner of a motor vessel employed in the coastal trade, contained the normal insuring agreement protecting against the perils of the sea and other risks, including the Inchmaree clause. The latter provided that loss or damage caused by the negligence of the master was covered provided such loss or damage did not result from want of due diligence by the owner. Both Courts below found that the proximate cause of the casualty was the unseaworthiness of the vessel caused by wrong loading for which the master was to blame. No general allegation of peril of the sea was put before the Court and the allegation of shifting of the load was not proven.
The trial judge found that the loss was one covered by the policy because the owner was free from blame. The Court of Appeal reversed the trial judgment on the ground that the owner was wanting in due diligence in seeing that the vessel was properly loaded.
Held: The appeal should be dismissed.
The Court of Appeal was correct on the question of due diligence. The owner failed to supply proper loading instructions and did not take the basic precaution to verify the conduct of its master.
[details per de Grandpré J., quoting for the most part from Davey J.A. in the B.C.C.A.:
The vessel was a converted automobile ferry employed in the coastal trade, carrying freight between Vancouver, B.C. and Loughborough Inlet, and way points. Her master was K.R. Watt and her mate P.J. Snow, both holding certificates of competency as Masters of home trade vessels limited to 350 tons.
On October 23, 1969, at about 0330 hours, the vessel was off Point Atkinson when she was found to be taking water. The master and crew abandoned her; she rolled over on her starboard beam, shed her deck cargo, and righted herself. The master boarded her and found the main engines still operating and beached her at Garrow Bay, one-half mile away.
The learned trial judge found that the proximate cause of the casualty was the unseaworthiness of the vessel caused by wrong loading, for which the master was to blame, but the owner was not.
The learned trial judge concluded that the casualty was caused by the vessel sailing with a free-board of only 18" at the stem, and that was aggravated by a rake of 1 foot down by the stem. At the vessel's full speed of 7 1/2 knots, she generated a bow wave 2 feet high, with the result that even in the dead calm sea the wave broke over the sponson shaped bow and made its way along the deck into the ventilators, which were properly left open under the prevailing conditions, and into the hold, further depressing the head and increasing the inrush of water until she lost her stability and rolled over.
Both Courts below found that the proximate cause of the casualty was the unseaworthiness of the vessel caused by wrong loading for which the master was to blame. I am certainly not ready to disturb these concurrent findings of fact. Indeed, they are well supported by the evidence.
The policies of insurance invoked by appellant contain the normal insuring agreement protecting against the perils of the sea and other risks, as well as the Inchmaree clause. The relevant part of the latter (taken from one of the policies) reads:
This insurance also specially to cover (subject to the Average Warranty) loss of or damage to the subject matter insured directly caused by the following:-- Negligence of Master, Charterers other than an Assured, Mariners, Engineers or Pilots:
Provided such loss or damage has not resulted from want of due diligence by the Assured, the Owners or Managers of the Vessel, or any of them.
But when the owner left full responsibility for the loading to the master it became its duty to furnish the master with sufficient information about minimum freeboard and trim for the vessel (among other data) to enable the master to exercise sound judgment in loading in the light of his skill and experience. The owner did not do so. Therein lay its want of due diligence. That information was especially necessary because the owner's standing instructions required the master to load the cargo on the vessel (mostly on the deck for which the vessel was well suited) in the inverse order to which it was to be unloaded according to the order of ports of call. Such procedure on occasion required heavier items of deck cargo to be placed well forward, which would depress the bow. On some occasions the owner, not the master, changed the usual order of ports of call to avoid excessive draught at the stem.
In 1960 the owner thought it desirable to learn something of the hydrostatic characteristics of the Brentwood and had Mr. Allan, a naval architect, perform inclination tests on the vessel to secure that information. The purpose of the tests was "to obtain an indication of the limits of cargo, distribution of cargo, and cargo weight" that the vessel could carry. Allan gave a written report to the owner (ex. 37). The report showed a minimum safe freeboard midship of 1'6" at even trim, which would substantially exceed 2 feet at the stem. Capt. Torn said that he maintained a minimum freeboard of 2 1/2 to 3 feet at the bow. Mr. Allan discussed verbally with O.H. New, the president of the owner, the question of trim because they both knew it was possible to load the vessel by the head, and they both agreed it would be undesirable to take the vessel any great distance with the trim below level by the head (A.B. 275), because that raised problems of taking water over the bow, steering and the vessel's behaviour.
None of the information verbal or written was given to Capt. Watt, notwithstanding the owner had gone to some expense to obtain it.
The written report was on board the vessel in a drawer under the master's bunk along with other papers of the ship, but Capt. Watt had not seen it, and no one seems to have told him about it. He said so far as he knew there was no stability information on the vessel at the time of the accident.
Mr. Allan said that he would expect a deep sea master to be able to read the inclination report, and extract necessary information from it, but not a master holding only a limited coastwise certificate; that coastal masters are not in the habit of making calculations from inclination test reports, but they do judge stability by their experience and the feel of the ship, and many are excellent in their use of these "seat of the pants" methods.
I think it clear from Capt. Watt's evidence that he could not have utilized fully the information contained in the inclination test report, even if he had seen it, and of course it would have given him no information about the limits of trim, because Mr. Allan did not include that in his report, but covered it in verbal discussion with Mr. New. Obviously, placing the report of the inclination tests on board the vessel was quite an inadequate substitute for proper loading instructions based upon the inclination tests.
Mr. Allan found it incredible that a master would load the vessel so that it had a rake of 1 foot down by the head with a freeboard at the stem of only 18". From that it would appear that an experienced master without any loading instructions should have seen the folly of so loading the vessel. But in my respectful opinion that does not excuse the lack of diligence of the owner in not supplying proper loading instructions. It emphasizes the need for them.
With these reasons I am in full agreement. As a matter of fact, other circumstances disclosed by the evidence clearly show to my mind that the appellant owner did not take the basic precaution to verify the conduct of his master:
1. on many previous occasions the ship was sent to sea with a cargo the weight of which was in excess of the maximum prescribed by Mr. Allan, the naval architect consulted by the appellant in 1960;
2. there were no draft marks on the vessel;
3. no system was devised by the owner to maintain logs showing freeboard, trims, etc.
The duty of due diligence imposed upon the owner is not satisfied if for years he closes his eyes and does nothing. His obligation is to act reasonably in the circumstances and the evidence in the present case discloses that the appellant's main competitor maintains a much better procedure.]
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(late edit: re the MV Brentwood, this was formerly know as "Cascade", and is discussed here on this forum, as part of this rambling thread: ferriesbc.proboards20.com/index.cgi?board=coasters&action=display&thread=1129503137 )
Here's the link to this legal case, that I've cut/pasted below:
faculty.law.ubc.ca/phideltaphi/links/CANS/Maritime/Maritime_HawkinsMargolis_2003_Can1.doc
==============================
(c) The Inchmaree Clause
Coast Ferries Ltd. v. Century Insurance Co. of Canada (1974), [1975] 2 S.C.R. 477, 48 D.L.R. (3d) 310 (S.C.C.)
A policy of marine insurance invoked by the appellant, the owner of a motor vessel employed in the coastal trade, contained the normal insuring agreement protecting against the perils of the sea and other risks, including the Inchmaree clause. The latter provided that loss or damage caused by the negligence of the master was covered provided such loss or damage did not result from want of due diligence by the owner. Both Courts below found that the proximate cause of the casualty was the unseaworthiness of the vessel caused by wrong loading for which the master was to blame. No general allegation of peril of the sea was put before the Court and the allegation of shifting of the load was not proven.
The trial judge found that the loss was one covered by the policy because the owner was free from blame. The Court of Appeal reversed the trial judgment on the ground that the owner was wanting in due diligence in seeing that the vessel was properly loaded.
Held: The appeal should be dismissed.
The Court of Appeal was correct on the question of due diligence. The owner failed to supply proper loading instructions and did not take the basic precaution to verify the conduct of its master.
[details per de Grandpré J., quoting for the most part from Davey J.A. in the B.C.C.A.:
The vessel was a converted automobile ferry employed in the coastal trade, carrying freight between Vancouver, B.C. and Loughborough Inlet, and way points. Her master was K.R. Watt and her mate P.J. Snow, both holding certificates of competency as Masters of home trade vessels limited to 350 tons.
On October 23, 1969, at about 0330 hours, the vessel was off Point Atkinson when she was found to be taking water. The master and crew abandoned her; she rolled over on her starboard beam, shed her deck cargo, and righted herself. The master boarded her and found the main engines still operating and beached her at Garrow Bay, one-half mile away.
The learned trial judge found that the proximate cause of the casualty was the unseaworthiness of the vessel caused by wrong loading, for which the master was to blame, but the owner was not.
The learned trial judge concluded that the casualty was caused by the vessel sailing with a free-board of only 18" at the stem, and that was aggravated by a rake of 1 foot down by the stem. At the vessel's full speed of 7 1/2 knots, she generated a bow wave 2 feet high, with the result that even in the dead calm sea the wave broke over the sponson shaped bow and made its way along the deck into the ventilators, which were properly left open under the prevailing conditions, and into the hold, further depressing the head and increasing the inrush of water until she lost her stability and rolled over.
Both Courts below found that the proximate cause of the casualty was the unseaworthiness of the vessel caused by wrong loading for which the master was to blame. I am certainly not ready to disturb these concurrent findings of fact. Indeed, they are well supported by the evidence.
The policies of insurance invoked by appellant contain the normal insuring agreement protecting against the perils of the sea and other risks, as well as the Inchmaree clause. The relevant part of the latter (taken from one of the policies) reads:
This insurance also specially to cover (subject to the Average Warranty) loss of or damage to the subject matter insured directly caused by the following:-- Negligence of Master, Charterers other than an Assured, Mariners, Engineers or Pilots:
Provided such loss or damage has not resulted from want of due diligence by the Assured, the Owners or Managers of the Vessel, or any of them.
But when the owner left full responsibility for the loading to the master it became its duty to furnish the master with sufficient information about minimum freeboard and trim for the vessel (among other data) to enable the master to exercise sound judgment in loading in the light of his skill and experience. The owner did not do so. Therein lay its want of due diligence. That information was especially necessary because the owner's standing instructions required the master to load the cargo on the vessel (mostly on the deck for which the vessel was well suited) in the inverse order to which it was to be unloaded according to the order of ports of call. Such procedure on occasion required heavier items of deck cargo to be placed well forward, which would depress the bow. On some occasions the owner, not the master, changed the usual order of ports of call to avoid excessive draught at the stem.
In 1960 the owner thought it desirable to learn something of the hydrostatic characteristics of the Brentwood and had Mr. Allan, a naval architect, perform inclination tests on the vessel to secure that information. The purpose of the tests was "to obtain an indication of the limits of cargo, distribution of cargo, and cargo weight" that the vessel could carry. Allan gave a written report to the owner (ex. 37). The report showed a minimum safe freeboard midship of 1'6" at even trim, which would substantially exceed 2 feet at the stem. Capt. Torn said that he maintained a minimum freeboard of 2 1/2 to 3 feet at the bow. Mr. Allan discussed verbally with O.H. New, the president of the owner, the question of trim because they both knew it was possible to load the vessel by the head, and they both agreed it would be undesirable to take the vessel any great distance with the trim below level by the head (A.B. 275), because that raised problems of taking water over the bow, steering and the vessel's behaviour.
None of the information verbal or written was given to Capt. Watt, notwithstanding the owner had gone to some expense to obtain it.
The written report was on board the vessel in a drawer under the master's bunk along with other papers of the ship, but Capt. Watt had not seen it, and no one seems to have told him about it. He said so far as he knew there was no stability information on the vessel at the time of the accident.
Mr. Allan said that he would expect a deep sea master to be able to read the inclination report, and extract necessary information from it, but not a master holding only a limited coastwise certificate; that coastal masters are not in the habit of making calculations from inclination test reports, but they do judge stability by their experience and the feel of the ship, and many are excellent in their use of these "seat of the pants" methods.
I think it clear from Capt. Watt's evidence that he could not have utilized fully the information contained in the inclination test report, even if he had seen it, and of course it would have given him no information about the limits of trim, because Mr. Allan did not include that in his report, but covered it in verbal discussion with Mr. New. Obviously, placing the report of the inclination tests on board the vessel was quite an inadequate substitute for proper loading instructions based upon the inclination tests.
Mr. Allan found it incredible that a master would load the vessel so that it had a rake of 1 foot down by the head with a freeboard at the stem of only 18". From that it would appear that an experienced master without any loading instructions should have seen the folly of so loading the vessel. But in my respectful opinion that does not excuse the lack of diligence of the owner in not supplying proper loading instructions. It emphasizes the need for them.
With these reasons I am in full agreement. As a matter of fact, other circumstances disclosed by the evidence clearly show to my mind that the appellant owner did not take the basic precaution to verify the conduct of his master:
1. on many previous occasions the ship was sent to sea with a cargo the weight of which was in excess of the maximum prescribed by Mr. Allan, the naval architect consulted by the appellant in 1960;
2. there were no draft marks on the vessel;
3. no system was devised by the owner to maintain logs showing freeboard, trims, etc.
The duty of due diligence imposed upon the owner is not satisfied if for years he closes his eyes and does nothing. His obligation is to act reasonably in the circumstances and the evidence in the present case discloses that the appellant's main competitor maintains a much better procedure.]
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